FISHER v. ILLINOIS DEPARTMENT OF CORRECTIONS

The opinion of the court was delivered by: Marvin E. Aspen, United States District Judge.

MEMORANDUM OPINION AND ORDER

Donald Fisher sued his former employer, the Illinois Department of
Corrections, alleging that he was denied a promotion because of
his age and race, in violation of Title VII of the Civil Rights
Act of 1964 and the Age Discrimination in Employment Act (ADEA).
The Department moved for summary judgment on both claims. For the
reasons set forth below, we deny the motion.

I. Background

The briefing on this motion can best be described as "a
mess." We will not cite all of the deficiencies here, but
worst of all the Department — in a reply filed 19 days after
an already substantially extended due date — completely
failed to respond to or raise any evidentiary objections to
Fisher's statement of additional material facts requiring the
denial of summary judgment. Time and again, the judges of
this Court have strictly enforced our Local Rules, e.g.,
Crawford v. Bank of Am., 181 F.R.D. 363, 364 (N.D. Ill. 1998)
(Aspen, C.J.); McGuire v. United Parcel Service,
152 F.3d 673, 674 (7th Cir. 1998), which deem admitted all of the
facts set forth in the plaintiff's statement of additional
facts which are not properly controverted by the other
party's response. We do so again today. Not only will these
facts will be deemed admitted for purposes of this motion,
but they will continue to be so considered for the duration
of the case, including the trial. See Dawson v. New York Life
Ins. Co., 932 F. Supp. 1509, 1513 (N.D. Ill. 1996) ("All
uncontested statements of fact in either party's statement
. . . are also deemed as being without substantial controversy
for purposes of Rule 56(d) and shall be deemed as established
for purposes of trial").*fn1 What follows, therefore,
is a recitation of the facts as we can best discern them, looking
at the evidence presented in the light most favorable to the
plaintiff as we must on a motion for summary judgment.

Donald Fisher, a caucasian male, began working as Youth
Supervisor for the Illinois Department of Corrections at the
Joliet Youth Center in 1968, when he was 24 years old. In
1986, when he was 42 years old, he was promoted to the
position of Youth Supervisor at Level III (YS-III). In the
summer of 1995, when Fisher was 51, he heard of an opening
for a Level IV (YS-IV) supervisor and applied for the
promotion. When the YS-IV interview schedule was posted,
Fisher's immediate supervisor, Chief of Security Robert
Catchings, told Fisher in front of his co-workers that Fisher
would not be promoted because Fisher was retiring, by which
Catchings meant that Fisher was too old to be promoted.
Fisher had no intention of retiring, however, nor had he ever
announced any such plans to Catchings or to anyone else.
After the interviews, the promotion was given to Robert
Powell, a younger (45-year old) African-American male.

More YS-IV openings followed, and Fisher applied and
interviewed again. He took the "Official Competitive
Promotional Examination" in August of 1996 and received a
grade of "A," indicating that he was "well qualified" for the
YS-IV position. He was asked to serve as a temporary YS-IV on
a number of occasions, and he did so for at least 83 days
from August of 1995 through January of 1997. Whenever Fisher
asked Catchings whether he would be promoted, however,
Catchings told him, "No, you're going to be retiring." The
second position went to Deborah McDonald, another younger
(46-year old) African-American female. After Fisher's third
application and interview, he was denied the promotion in
favor of Mario Shumpert, a third younger (49-year old)
African-American applicant. Fisher applied a fourth time but
then declined to interview and withdrew his application. At
that time, all of the YS-IV supervisors were
African-Americans.

According to the Department of Corrections, Fisher was never
promoted because someone else always received a higher
interview score than he did. The Department claims that the
interviews were conducted and the scores computed according
to the "Rutan" method of evaluation.*fn2 According to James
Mitchell, Superintendent of the Joliet Youth Center since
1991:

Rutan is an interviewing format using objective criteria to
evaluate candidates. The criteria vary for each person. The
reason for using this method is to ensure that the best
candidate is chosen for each position. Mr. Whitaker [who
scored the interviews of each candidate] is trained in the
methods of Rutan scoring.

Mitchell, who was the decision maker for the YS-IV
promotions, went on to describe the procedure followed in the
case of the YS-IV applicants: "All candidates were given the
same set of questions. Each candidate was given a numerical
score based on answers to the standard questions."

Mitchell also stated that "[i]n addition, the candidate's
time usage, disciplinary records and performance evaluations
were reviewed." We know the following about the records of
Fisher and the employees who were promoted. Fisher was never
charged with any wrongdoing and had never been suspended.
However, the Department reprimanded Robert Powell shortly
before his promotion for an inadequate search of a youth and
for failing to respond to the charge. After finding Powell
guilty of using excessive force on a youth, aggravated
battery, filing a false/distorted report, and conduct
unbecoming of a State employee, the Department suspended him
for 10 days. About seven months before Mario Shumpert was
promoted, the Department reprimanded him for failure to
adhere to security practices. Just five days before
Shumpert's interview, he was "written up" again for failing
to do the work necessary in order for employees to receive
their overtime pay. Shortly thereafter, the Department
recommended that he be suspended for three days because of an
earlier incident in which he failed to adhere to security
practices and to supervise a youth.

Fisher also had more experience acting as a temporary YS-IV
than did Robert Powell, and it was Fisher who trained Mario
Shumpert in the YS-IV position. In addition, Fisher had
seniority over each candidate promoted. Under the Collective
Bargaining Agreement between Fisher's union and the
Department, seniority is to be the controlling factor when
candidates' ability and qualifications to perform the desired
job are relatively equal.

Fisher was told by Mitchell that he was a good candidate but
was not promoted simply because the Department had found
someone better, and he was encouraged to keep applying.
Fisher found a letter, however, which led him to believe
otherwise. The letter, addressed to a union official and
signed by Janet Richmond, the Department's Affirmative Action
Coordinator, stated that the Department did not want to
promote Fisher because they wanted a younger, black male for
the position.

Fisher was humiliated. His co-workers started calling him
"crazy old Indian" and told him to "go home, you're too old
to be here." He was subjected to jokes and ridicule about his
not getting the YS-IV job after interviewing three times for
it. In December, 1997, Fisher complained about not being
promoted, and Shumpert pushed him into a door and told him to
leave the building. Fisher became depressed, sought treatment
from a ...

Our website includes the first part of the main text of the court's opinion.
To read the entire case, you must purchase the decision for download. With purchase,
you also receive any available docket numbers, case citations or footnotes, dissents
and concurrences that accompany the decision.
Docket numbers and/or citations allow you to research a case further or to use a case in a
legal proceeding. Footnotes (if any) include details of the court's decision. If the document contains a simple affirmation or denial without discussion,
there may not be additional text.

Buy This Entire Record For
$7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.